Gipson v. Memphis Street Railway Co.

364 S.W.2d 110, 51 Tenn. App. 31, 1962 Tenn. App. LEXIS 93
CourtCourt of Appeals of Tennessee
DecidedFebruary 21, 1962
StatusPublished
Cited by3 cases

This text of 364 S.W.2d 110 (Gipson v. Memphis Street Railway Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gipson v. Memphis Street Railway Co., 364 S.W.2d 110, 51 Tenn. App. 31, 1962 Tenn. App. LEXIS 93 (Tenn. Ct. App. 1962).

Opinion

CAKNEY, J.

This is a suit for the alleged wrongful death of the original plaintiff, Mrs. Zelma B. Gipson. On the trial below, at the conclusion of all the proof, His Honor, the Trial Judge, directed a verdict in favor of the defendant on the ground that the death of the deceased was not caused by the alleged unlawful act of the defendant.

The original plaintiff, Mrs. Gipson, aged 58, died on December 18,1957, during the course of an operation for the removal of a brain tumor. Her children, the present plaintiffs, insist that her death was hastened by an electric shock which she received on September 11,1957, while boarding one of defendant’s electric coaches on Main Street in Memphis, Tennessee. Plaintiffs contend that the electric shock aggravated a dormant brain tumor, caused it to grow and spread very rapidly and that such electric shock was in fact a proximate cause of their mother’s death within the meaning of our wrongful death act, T.C.A. Section 28-304.

Prior to the time of the shock Mrs. Gipson was apparently in good health but immediately after the shock her [33]*33physical condition deteriorated very rapidly, her speech was impaired, she became unable to dress herself and walked with the greatest difficulty. On the next day after the shock she consulted her personal physician, the witness, Dr. Ealph I. Goldman. Dr. Goldman saw Mrs. Gipson on September 12-13-16-19-22, and 26. His first diagnosis was post-electric shock syndrome with severe anxiety.

On October 29,1957, Dr. Goldman, after Mrs. Gipson’s condition became progressively worse, suspected a brain tumor and referred her to a neurosurgeon, Dr. C. D. Hawkes. After a series of tests Dr. Hawkes confirmed the diagnosis of brain tumor and suggested an operation as the only hope of recovery. An operation was performed on December 16, 1957, but Mrs. Gipson never recovered consciousness and died December 18, 1957.

Since His Honor the Trial Judge directed a verdict solely on the question of cause of death of Mrs. Gipson, on this appeal we shall assume that there was sufficient evidence to go to the jury on the question of the defendant’s negligence and we will not treat that matter further.

The plaintiffs contend that even though the immediate cause of death of Mrs. Gipson was admittedly a malignant brain tumor, yet there was competent evidence from which the jury could reasonably have found that her death was hastened as a direct result of the electric shock which she received. They insist that under the authority of Railroad v. Northington, 1891, 91 Tenn. 56, 17 S. W. 880, and Elrod v. Town of Franklin, 1917, 140 Tenn. 228, 204 S. W. 298, the defendant is liable under our. wrongful death statute if its negligence hastened the death of the deceased.

[34]*34They quote and rely upon the following language from the Elrod case which quoted approvingly from the Northington case:

“In our own case of Railroad v. Northington, 91 Tenn. 56, 17 S. W. 880, the doctrine above stated was recognized. This was a death case, but the court approved a charge which said in substance that, if the deceased already had a fatal disease from which there was no hope of recovery, and his death was inevitable from that disease in a short time, and the injury was slight and of such a character as to aggravate the disease, and he died of the disease, and not of the injury, the plaintiff could not recover; but if death was hastened, or occurred sooner, by reason of the injury, than it otherwise would, then the injury was the cause of death. The court examined authorities pro and con and accepted the foregoing statement as embodying the true doctrine. In the course of the opinion the court made this statement:
“ ‘A man might be suffering from an incurable disease, or mortal wound, with only two days to live, when a negligent wrongdoer inflicted upon him an injury which in his condition of debility took his life or developed agencies which destroyed him in one day, and yet the latter wrong be in a legal sense the cause of his death, though it only hastened that which on the next day would have inevitably happened.’ ”

In support of the plaintiffs’ contention they offered the following testimony of Mrs. Gipson’s physician, Dr. Goldman:

[35]*35‘ ‘ Q. What was your final diagnosis with reference to her condition from the original date yon saw her until she died?
“A My final diagnosis was post-electric shock syndrome, secondary anxiety state, acnte cervical strain and neoplasm of the brain.
“Q You stated, I believe, that she had an acute cervical strain?
“A Yes.
‘ ‘ Q With a history of being shocked as you stated in the history, I don’t understand the connection between that and the cervical strain; would you explain that for the benefit of the Court and jury?
“A Yes, the patient falling, in falling she may'have jerked her head, and the fact that a shock goes through a person’s body will cause the neck to jerk, and will cause a cervical strain.
“Q A jolt of some type; is that what you mean?
“A Yes.
“Q Will you state whether or not there was any acceleration or exaggeration or any connection whatever with the history of being shocked on the bus with her tumor condition you have described?
“A I cannot say the accident was the cause of the tumor hut it was a thing that caused the process to speed up and lead to a very rapid death or demise.
“Q Would you say that it was more probable than not that the shock caused the process to speed up and cause her to die shortly thereafter?
[36]*36“ME. LEWIS: I object to the question because it is leading.
‘ ‘ Q Will you state whether or not, or please tell us with what certainty you are making that statement?
“A Neoplasm of the brain is not that rapidly a growing tumor usually and this is particularly true in a woman of this age. Her symptoms came on so shortly thereafter; they were worse so shortly after the shock and I might add that on the first examination I made of her there was no evidence of this tumor or intercranial space occupying lesion at all, and a thorough physical examination was done, and yet in a period of only a few weeks the symptoms came on and ended in her rapid death or demise. So something must have happened that caused the tumor to grow so rapidly and get control of the body rather than the body holding the control over the tumor. This injury was certainly enough to lower the brain tissue and her body resistance and it simply allowed the tumor to become rampant in growth.
“Q State whether or not it is more probable than not that the accident, the shock accelerated or aggravated her condition and hastened her death?
“A Yes, I feel it did. It was my impression all along that that was the case.”

Dr. C. D. Hawkes, the neurosurgeon who operated on Mrs. Gipson, testified that he first saw Mrs. Gipson on November 21,1957, after she had been referred to him by Dr. Goldman.

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Bluebook (online)
364 S.W.2d 110, 51 Tenn. App. 31, 1962 Tenn. App. LEXIS 93, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gipson-v-memphis-street-railway-co-tennctapp-1962.